In Court
| Date | 01 June 2007 |
| DOI | 10.1177/0264550507077249 |
| Published date | 01 June 2007 |
| Subject Matter | Articles |
In court
The Journal of Community and Criminal Justice
Copyright © 2007 NAPO Vol 54(2): 191–202
DOI: 10.1177/0264550507077249
www.napo.org.uk
http://prb.sagepub.com
Nigel Stone, Senior Lecturer in the School of Social Work, University of East Anglia,
reviews recent appeal judgements and other judicial developments that inform
sentencing and early release.
General sentencing issues
Personal mitigation
A man aged 35, of previous good character, who had been traced through
‘chatroom logs’ as part of wider inquiries into conspiracy to kidnap and rape
children (with whom he had no direct connection or even knowledge), was found
to have indecent images of children stored on his computer, featuring some at
‘level four’ (using the Oliver scale of ascending gravity). He had also distributed
some images, not for financial gain but as part of his chatroom communication
with or about children, featuring obscene messages. He had been in the habit of
pursuing this secret deviant interest while his wife was out, usually on Saturday
mornings. So far, so unextraordinary. However, he was a serving soldier, holding
the rank of regimental sergeant-major, with a remarkable record of Army service.
He had served with distinction and conspicuous bravery in a number of conflict
zones, showing outstanding leadership, courage and gallantry. He had achieved
unprecedented promotion for his age and had been anticipated to progress further
to commissioned officer status. He was exceptional in every aspect of his military
career. Despite glowing references, the Army had indicated that if he incurred a
custodial sentence his career would be terminated, with ensuing loss of pension
and gratuity rights. A pre-sentence report (PSR) and a psychiatric report had indi-
cated that he posed a low risk of re-offending and was considered to be likely to
take full advantage of treatment through a sexual offenders programme.
On his appeal against nine months immediate imprisonment, following guilty
plea, the Court of Appeal noted the very unusual combination of serious offences
of this nature and such notable personal qualities reflected in outstanding service
to the country. Though the Appeal Court has previously indicated that personal
mitigation will count for relatively little in sentencing for this kind of crime, Moses
LJ indicated that it was impossible to hold that features such as applied here
should carry little weight. This offender had been entitled to pray in aid and draw
credit for his long and distinguished service and bravery. Accordingly, the Court
191
192 Probation Journal 54(2)
determined that an immediate custodial term had not been appropriate. It substi-
tuted a sentence of the same length, suspended for two years and with a require-
ment to undertake a community sexual offending treatment programme. The Court
also hoped that the Army would reconsider its stance regarding disciplinary conse-
quences and the appellant’s future. R v GARDENER (September 2006, not reported
at time of writing).
Deception of the elderly: Clang of prison doors?
Several elderly persons receiving care either in residential homes or their own
homes were the subject of theft of cheques from their chequebooks that were then
used fraudulently to secure payments into various bank accounts. As part of this
conspiracy to obtain money by deception a 29-year-old woman without previous
convictions benefited from a cheque for £3000. She had not been involved in the
theft of any cheques and claimed no knowledge of how the money had reached
her account but she had used it to pay off her credit card debt. The PSR outlined
that she had come to the United Kingdom from Zimbabwe three years prior to
her offence, that her husband had died six months before the offence, and that
she occupied a rented room with her daughter aged 30 months, being 12 weeks
pregnant. She had little or no social support and was considered to pose a low
risk of re-offending. The Crown Court judge had considered that a short custodial
sentence was justified, given the ‘nasty’ nature of the offence (preying on the elderly)
and to offer a short sharp shock, ‘the clang of prison doors’.
On her appeal against one month’s imprisonment following contested trial, the
Court of Appeal referred to the well known case of Mills (2002) that had pointed
to the importance of considering the consequences for the children when consider-
ing whether to send a woman providing sole maternal care to prison. It considered
that an offence of this nature would generally attract a custodial term, but in light
of her limited involvement and her personal mitigation it would have been ‘just
possible’ for the judge to impose a community sentence instead. However, as she
had nearly completed the sentence the Court opted instead to substitute a two
week term, thus ensuring her immediate release. R v BONDIYA (November 2006,
not reported at time of writing).
Benefit fraud
In an instance of what was described as ‘typical Benefit fraud’, in which the offender
had continued to claim after finding employment, thus gaining £16,000 over a
four year period, the offender appealed against 12 months imprisonment follow-
ing early guilty plea. He was of previous good character, had poor health (Crohn’s
disease that the Appeal Court understood would be difficult to monitor in prison)
and he had made some attempt at repayment, albeit only around £120.
The Court of Appeal noted the relevant guidelines (in Graham and Whatley –
2005) indicating that a term in the region of nine to 12 months following contested
trial is appropriate where the sum is less than £20,000. In the light of mitigation
it concluded that the term was excessive and substituted eight months. R v PRYCE
(October 2006, not reported at time of writing).
In court 193
Seeing some end to driving ban
A man aged 32 with ‘an appalling driving record’ (featuring 25 appearances
for 68 offences from 1990) had tried to evade pursuing police when seen driving
(a car he owned) while subject to disqualification and also a suspended sentence
imposed for driving whilst disqualified. He drove dangerously, losing control so that
his passenger, a girl aged 14, was seriously injured, being in a coma and requir-
ing intensive care. He too was injured, fracturing both legs. He had three previous
convictions for dangerous driving. He told the PSR writer that he did not want to
drive again but he was assessed as posing a high risk of re-offending.
On his appeal, not against 27 months imprisonment but in seeking to challenge
the ancillary order of 10 years disqualification, the Court of Appeal acknowledged
that he represented a real and continuing danger to road users. However, ‘we are
also mindful of the need to protect the public by giving such a person at least the
chance to feel that he can get back to driving, should he wish to do so, at some
foreseeable time in the future’. Given too that he would have to pass an extended
driving test before he could resume driving, the Court considered it right to reduce
the ban to five years so that the offender could see some end to his period of
disqualification. R v ZINDANI (September 2006, not reported at time of writing).
Racial aggravation
Victim protection
A man living next door to an Asian family took exception to what he claimed was
excessive noise within their home, particularly in respect of their four young children.
His expressions of hostility on this account prompted police to warn him about his
behaviour. He...
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